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Gillette v. Gillette

Florida Court of Appeals, Fourth District

September 6, 2017

ANDREA K. GILLETTE n/k/a ANDREA ECONOMUS, Appellant,
v.
JOSEPH G. GILLETTE, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Lisa S. Small, Judge; L.T. Case No. 502010DR004549XXXXMB.

          Martin L. Haines, III of Brinkley Morgan, Lake Park, for appellant.

         Troy William Klein of Law Office of Troy W. Klein, P.A., West Palm Beach, for appellee.

          Kuntz, J.

         The Former Wife appeals the circuit court's final judgment of dissolution of marriage. We address three of the issues raised by the Former Wife in this opinion and affirm the remaining issues raised on appeal without further discussion.

         First, we hold that the court did not abuse its discretion when it concluded the Former Husband was not voluntarily underemployed. Second, we affirm in part and reverse in part the court's calculation of the Former Wife's child support obligation. Third, we reverse the court's conclusion that the Former Husband's IRA was a non-marital asset.

         Background

         After twelve years of marriage, the Former Husband filed a petition for dissolution of marriage and sought sole parental responsibility and to be designated the primary residential parent of the parties' only child. After a three-day trial, the court issued a twenty-five page Final Judgment of Dissolution of Marriage.

         The court found that the Former Wife had a bachelor's degree in communications from Loyola Marymount University in Los Angeles, California, and the Former Husband had a master's degree in mechanical engineering from the University of Florida in Gainesville, Florida.

         Prior to the marriage, both parties worked outside the home. The Former Wife quit her job in 2001, and remained unemployed until the petition for dissolution was filed. The Former Husband was employed as an engineer working with cellular phone technology at a technology company, earning approximately $90, 000 per year until 2004. The court found that the Former Husband's "experience is with cellular phone technology as it existed in 2004-which was before the release of the first iPhone and the other smart phones that are popular today."

         In 2001, with the encouragement of the Former Wife, the Former Husband started a cloud computing storage business, Shadow Storage. He operated Shadow Storage simultaneously with his employment at the technology company until 2004. The court found that "the parties mutually decided in 2004, that the [Former] Husband would resign from [the technology company] where he worked with cellular phones to devote himself full-time to working with Shadow Storage, Inc., the family business, as well as raise the parties' son." Since 2004, the Former Husband has worked full-time for Shadow Storage.

         The Former Husband testified that from the time he began working fulltime at Shadow Storage until the filing of the petition, the Former Wife did not ask him to give up his work at Shadow Storage or demand that he find work outside the home. Importantly, for purposes of this appeal, the court found this testimony to be credible.

         While the Former Wife agreed to the Former Husband's working at Shadow Storage during the marriage, her consent dissolved with the marriage. As a result, the Former Wife argued to the circuit court that the Former Husband is voluntarily underemployed. Although he testified that he works between forty and fifty hours per week at Shadow Storage, the highest amount of gross income he made in any year from the company was $13, 000. The Former Wife presented a vocational expert who testified the Former Husband could be employed in various fields and earn significantly more than he earned at Shadow ...


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